Biglaw, In-House Counsel

Shhh! How To Actually Keep A Secret

Advice on keeping confidences, from in-house counsel Mark Herrmann.

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dartboard pen inside straightAs every lawyer knows, no one keeps a secret.

Protective orders are protective sieves. Information produced under a protective order today is leaked to the Times tomorrow.

Non-disclosure agreements are invitations to boast. After Smith signs the non-disclosure agreement, he promptly calls his old high school buddy to report that Smith is privy to the following inside information . . . .

Everybody talks.

If you want to keep a secret, don’t tell anyone.

Maybe that will work.

If you must tell someone, tell the fewest number of people necessary to achieve your goal.

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Unfortunately, that means that you must tell someone.

Suppose that a person who knows a secret (and is sworn not to disclose it) is asked about that subject. How should someone who’s under the tent keep from disclosing information to someone who’s not under the tent?

For example, someone who doesn’t yet know your secret asks: “I read in the newspaper yesterday that we’re planning to buy BigCo. Are we?”

How should the person who wants to keep the secret (even though the information has already been leaked to the press) respond?

The natural reaction is to respond the braggart’s way: “I’m not at liberty to tell you anything about that.”

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You’ve proved your superiority! You know about the deal. You’ve implicitly disclosed that the deal is being discussed internally and thus may occur. Yet, you tell yourself, you haven’t breached your non-disclosure obligation because you haven’t revealed anything confidential.

Poppycock.

You’re not allowed to respond to this question the braggart’s way; you must respond the way a person who’s trying to keep a secret would respond. Thus:

“I read in the newspaper yesterday that we’re planning to buy BigCo. Are we?”

“BigCo? I saw those press reports, too, but I don’t know anything about it. I haven’t heard a peep.”

I know, I know: If you answer this way, you haven’t proved that you’re a big shot, with knowledge of inside information.

But you’ve done what you promised to do: You’ve actually kept the secret. You haven’t told the questioner, implicitly or otherwise, that the deal is being discussed. You’ve simply lied (as you’re required to do), saying that you don’t know anything about it, leaving the questioner with no new information.

I understand that this doesn’t implicitly brag, or implicitly give away information, or do any of the other stuff that you’re itching to do. You know a secret! You want to show that you’re special!

But saying that you don’t know anything about a subject is the only way to keep the secret, and that is, after all, what you promised to do.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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